UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
_________________________________________ ) PAUL FRITCH, ) ) Plaintiff, ) ) v. ) Case No. 15-cv-00430 (APM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) _________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Paul Fritch, a career Foreign Service Officer employed by Defendant
U.S. Department of State, filed this lawsuit under the Administrative Procedure Act (“APA”),
seeking review of the Foreign Service Grievance Board’s rulings regarding two administrative
grievances he filed. In his first grievance, Plaintiff complained that he was deprived of certain
benefits, such as promotion consideration, during a five-year assignment to serve as Director of
the Office of the Secretary General for the Organization for Security and Cooperation in Europe
(“OSCE”). Defendant deemed Plaintiff ineligible for those benefits because his assignment to
OSCE was done through a “separation and transfer” agreement, instead of a “detail.” The Foreign
Service Grievance Board (“FSGB” or “Board”) affirmed the denial of Plaintiff’s first grievance,
and this court upheld that decision. See generally Fritch v. U.S. Dep’t of State, 220 F. Supp. 3d
51 (D.D.C. 2016) (granting partial summary judgment in favor of Defendant on Counts I and II of
the Amended Complaint). After the FSGB denied his first grievance, Plaintiff filed a second grievance in which he
argued that he was entitled to certain benefits upon his re-employment with Defendant in June
2012, as a consequence of his separation and transfer to the OSCE. The Board, however, dismissed
Plaintiff’s second grievance based upon the common law doctrine of claim preclusion. That ruling
is the subject of the dispute now before the court.
Upon consideration of the parties’ submissions and the present record, the court concludes
that the Board’s decision to dismiss Plaintiff’s second grievance was neither arbitrary and
capricious nor contrary to law. Accordingly, the court grants Defendant’s Motion for Summary
Judgment and denies Plaintiff’s Cross-Motion for Summary Judgment.
II. BACKGROUND
Plaintiff is a career Foreign Service Officer employed since 1991 by Defendant U.S.
Department of State (“State” or “the Department”). Def.’s Mot. for Summ. J., ECF No. 46
[hereinafter Def.’s Mot.], at 6;1 Pl.’s Cross-Mot. for Summ. J. & Opp’n to Def.’s Mot. for Summ.
J., ECF No. 48 [hereinafter Pl.’s Cross-Mot.], at 3. In 2007, Plaintiff applied, and was ultimately
selected, for the position of Director of the Office of the Secretary General of the OSCE. Def.’s
Mot. at 6; Pl.’s Cross-Mot. at 4. After Plaintiff accepted the position, State determined that
Plaintiff’s assignment to OSCE was properly effectuated via a “separation and transfer”
agreement, whereby Plaintiff was formally separated from State and transferred to OSCE but
retained the right to resume his employment at State upon concluding his tenure with OSCE.
Def.’s Mot. at 6–7; Pl.’s Cross-Mot. at 4. Importantly, Plaintiff was not “detailed” to work at
OSCE, which would have resulted in Plaintiff remaining a State employee even while performing
work for OSCE. Id.
1 Citations to Defendant’s Motion are to the page numbers electronically generated by CM/ECF.
2 Plaintiff served as Director of the Office of the Secretary General at the OSCE from
September 2007 through March 2012, and was re-employed by State in June 2012. Def.’s Mot. at
7; Pl.’s Cross-Mot. at 4–5. On August 7, 2012, Plaintiff filed a grievance with State (“First
Grievance”). 2 Def.’s Mot. at 7; Pl.’s Cross-Mot. at 5. In his First Grievance, Plaintiff primarily
argued that the Department was incorrect in treating his time at OSCE as a separation and transfer,
instead of a detail. See Def.’s Mot. at 7–8; Pl.’s Cross-Mot. at 5. As a result of that error, he
asserted, Defendant had improperly denied him consideration for promotion within the Foreign
Service while working at OSCE. See id.; see also Admin. R. Part 3, ECF No. 35-4, at 22, 24, 28,
30–31. 3 Plaintiff requested, among other things, that he receive reconstituted selection boards
from 2008 through 2012 for purposes of promotion consideration. Def.’s Mot. at 8; Pl.’s Cross-
Mot. at 5–6.
State denied Plaintiff’s First Grievance, and Plaintiff appealed to the FSGB. Def.’s Mot.
at 8; Pl.’s Cross-Mot. at 6. In addition to the relief he requested at the agency level relating to
promotion consideration, Plaintiff also sought reimbursement of housing expenses, as well as sick
and home leave that he would have accrued if his assignment to OSCE had been effectuated via
detail. Id.; see also Admin. R. Part 4, ECF No. 36, at 56–57. The Board denied Plaintiff’s appeal
of his First Grievance in its entirety. Def.’s Mot. at 8; Pl.’s Cross-Mot. at 6–7. Plaintiff then filed
a request for reconsideration. Def.’s Mot. at 8; Pl.’s Cross-Mot. at 7.
Before the Board could rule on Plaintiff’s request for reconsideration, Plaintiff filed a new
grievance with State on April 21, 2014 (“Second Grievance”). See Def.’s Mot. at 10; Pl.’s Cross-
Mot. at 9. In his Second Grievance, Plaintiff asked the Department “to address violations of
2 Plaintiff was ineligible to file a grievance while an employee of OSCE and separated from State. Id. 3 Citations to the Administrative Record are to the page numbers electronically generated by CM/ECF.
3 statute, regulation and published agency policy created by the Board’s” finding that Plaintiff was
separated from State during his time at OSCE. Admin. R., ECF No. 44, at 5; see also id. at 11–
15. Specifically, Plaintiff alleged that the Department: (1) “failed to comply with 5 C.F.R.
§ 352.314(a) when it did not consider Plaintiff for promotion during the period of time when he
was separated from the Department and transferred to OSCE”; (2) “acted inconsistently with
Executive Order 11552 and 5 U.S.C. § 3584 when it failed to give ‘due consideration’ to Plaintiff’s
qualifications gained during his service with the OSCE when determining the position and grade
to which he was assigned upon his reemployment with the Agency,” instead opting “merely to
reinstate him at the grade he had held prior to that service, three grades lower than the rank of the
position he had held at the OSCE”; and (3) “failed to reimburse Plaintiff for housing expenses
incurred when Plaintiff was separated and transferred from the Department and employed by the
OSCE.” Pl.’s Cross-Mot. at 9–10; accord Def.’s Mot. at 10. 4 Among other remedies, Plaintiff
sought an upward adjustment of his grade level and reimbursement of housing expenses. Def.’s
Mot. at 10–11; Pl.’s Cross-Mot. at 10.
Because the Department did not render a timely decision on Plaintiff’s Second Grievance,
Plaintiff “referred” his grievance directly to the FSGB, which the Board docketed as an appeal.
Pl.’s Cross-Mot. at 15. 5 But before ruling on the Second Grievance, the FSGB denied Plaintiff’s
request for reconsideration as to his First Grievance, see Admin. R. Part 6, ECF No. 38, at 268–
4 Plaintiff also claimed that the Department violated 5 U.S.C. § 8432(c) when it “failed to provide Plaintiff with the opportunity to make up the Thrift Savings Plan [‘TSP’] contributions missed during his service with the OSCE and to reimburse him for any missed Agency basic and matching TSP contributions.” Pl.’s Cross-Mot. at 9–10; see Def.’s Mot. at 10; see also Am. Compl., ECF No. 21, at 19 (seeking TSP contributions). As Plaintiff acknowledges, however, the Department has since reimbursed Plaintiff’s TSP account “as required by law.” Pl.’s Cross-Mot. at 17; see id. at 10 n.5. 5 The Department claims that it “stayed its investigation and processing of the Second Grievance pending the Board’s decision on Plaintiff’s Request for Reconsideration on the First Grievance.” Def.’s Mot. at 12 n.4; see also Admin. R. Part 6, ECF No. 38, at 197. Thus, the Department refers to Plaintiff’s filing with the FSGB as an “appeal.” Def.’s Mot. at 12.
4 77, which led Plaintiff to file the instant action under the APA, 5 U.S.C. §§ 701 et seq., see Compl.,
ECF No. 1; see also Am. Compl., ECF No. 21, ¶¶ 39–46 (reasserting Counts I and II, as pled in
the original Complaint). Thereafter, the Department moved to dismiss the Second Grievance
arguing, among other things, that it should be dismissed under the common law doctrine of claim
preclusion. See Def.’s Mot. at 12; Pl.’s Cross-Mot. at 15. On September 24, 2015, the Board
dismissed the Second Grievance, agreeing with State that the doctrine of claim preclusion operated
to bar Plaintiff’s Second Grievance because it concerned the same operative set of facts as his First
Grievance. See Def.’s Mot. at 12; Pl.’s Cross-Mot. at 16; see also Admin. R., ECF No. 44, at 104–
13.
Following that decision, Plaintiff amended his Complaint to add claims (Counts III and IV)
challenging the Board’s dismissal of his Second Grievance. See generally Am. Compl.
In Count III, Plaintiff asks the court to set aside the Board’s denial of his Second Grievance as
“arbitrary, capricious, and otherwise not in accordance with law.” Am. Compl. at 17; see 5 U.S.C.
§ 706(2)(A). Plaintiffs offers two arguments to support this claim. First, Plaintiff alleges that he
could not have filed the Second Grievance seeking the benefits denied to him following his re-
employment “until it became clear that the Department would deny him those benefits.” Am.
Compl. ¶ 47. Thus, “in essence,” he filed the Second Grievance “to enforce the Board’s findings
in the original grievance, not to relitigate them.” Id. Second, Plaintiff claims that while the FSGB
has applied issue preclusion in the past, FSGB deviated “without explanation” from prior decisions
in the instant case by applying the doctrine of claim preclusion, which it previously had never
applied to dismiss a grievance. Id. ¶ 48. Count IV of Plaintiff’s Amended Complaint asks the
court to set aside the FSGB’s denial for a different reason: the failure “to consider all relevant
evidence in the record and provide a reasonable explanation for its decision to dismiss the [second]
5 grievance.” Id. at 18. Specifically, Plaintiff alleges that by dismissing the Second Grievance, the
Board “refus[ed] to require that Defendant provide to Plaintiff those benefits specifically
guaranteed by law to those employees in the status (re-employment following a separation/transfer
to an international organization) it had found applied to him.” Id. ¶ 49.
This court previously granted summary judgment for the Department on Counts I and II of
the Amended Complaint, which challenged the denial of Plaintiff’s First Grievance. See generally
Fritch v. U.S. Dep’t of State, 220 F. Supp. 3d 51 (D.D.C. 2016). Thereafter, the parties filed cross-
motions for summary judgment challenging the remaining two counts of the Amended Complaint
(Counts III and IV), both of which relate to the denial of Plaintiff’s Second Grievance. The parties’
cross-motions are now ripe for consideration.
III. LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court ordinarily must grant
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). But where, as
here, the case involves review of a final agency action under the APA, the Rule 56 standard does
not apply. See Picur v. Kerry, 128 F. Supp. 3d 302, 308 (D.D.C. 2015). Under the APA, the
court’s review “is limited to the administrative record and the grounds for decision invoked by the
agency.” Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F. Supp. 2d 42, 52 (D.D.C. 2010) (citing
Camp v. Pitts, 411 U.S. 138, 142 (1973)). “[T]he function of the district court is to determine
whether or not as a matter of law the evidence in the administrative record permitted the agency
to make the decision it did.” Stuttering Found. of Am. v. Springer, 498 F. Supp. 2d 203, 207
(D.D.C. 2007) (internal quotation marks omitted).
6 The Foreign Service Act provides that decisions of the FSGB are subject to judicial review
under the APA. See 22 U.S.C. § 4140(a); Olson v. Clinton, 602 F. Supp. 2d 93, 100 (D.D.C. 2009).
Under the APA, a reviewing court shall set aside agency action if it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). To determine
whether this standard is met, the court must determine “whether the decision was based on a
consideration of the relevant factors and whether there has been a clear error of judgment.” Dana-
Farber Cancer Inst. v. Hargan, 878 F.3d 336, 343 (D.C. Cir. 2017) (quoting Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983)). Agency action is
arbitrary and capricious “if the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency expertise.” Id. (quoting State
Farm, 463 U.S. at 43).
In essence, agency action must be “the product of reasoned decisionmaking” in order to
survive arbitrary and capricious review. Fox v. Clinton, 684 F.3d 67, 74–75 (D.C. Cir. 2012);
accord Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015). Thus, the court “will ordinarily uphold
an agency’s decision so long as the agency ‘examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action[,] including a rational connection between the facts found
and the choice made.’” Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602, 611 (D.C. Cir.
2017) (quoting State Farm, 463 U.S. at 43). A court, however, should not “supply a reasoned
basis for the agency’s action that the agency itself has not given.” State Farm, 463 U.S. at 43
(internal quotation mark omitted).
7 IV. DISCUSSION
In this case, the parties have moved for summary judgment on Counts III and IV of the
Amended Complaint. With respect to Count III, the Department contends that because Plaintiff
could have pursued in his First Grievance the benefits to which he now claims entitlement, but
failed to do so, the Board properly determined that he was precluded from pursuing those benefits
in his Second Grievance. Def.’s Mot. at 14–15. Moreover, the Department asserts that this court
may not consider Plaintiff’s argument regarding the Board’s failure to apply claim preclusion in
the past, as Plaintiff failed to raise that argument in the administrative proceedings below. Id. at
15–16. And in any event, Defendant submits, Plaintiff has failed to cite any Board precedent
conflicting with its decision to dismiss the grievance in the instant case or otherwise demonstrating
that its decision to do so was arbitrary, capricious, or otherwise not in accordance with law. Id. at
16. With respect to Count IV, the Department argues that, because the Board dismissed the Second
Grievance on the ground of claim preclusion, by definition, it did not need to reach the merits. Id.
Plaintiff, for his part, offers three “fundamental reasons” why the Board’s dismissal of his
Second Grievance should be set aside. Pl.’s Cross-Mot. at 23. First, Plaintiff claims that the Board
“failed to follow governing regulations when it treated Plaintiff’s Second Grievance as an appeal
subject to review, rather than as a grievance to be investigated.” Id. at 23–24. Second, Plaintiff
asserts that the Board erred in finding his claims were barred by claim preclusion. Id. at 24. Third,
Plaintiff argues that, under the principle of judicial estoppel, the Board never should have
considered claim preclusion in the first place, let alone dismissed his grievance on that basis. Id.
The court addresses these arguments in turn.
8 A. FSGB’s Treatment of Plaintiff’s Second Grievance as an Appeal
The court begins with, and quickly dismisses, Plaintiff’s argument that the Board’s
treatment of his Second Grievance as an “appeal” was “not in accordance with law.” Pl.’s Cross-
Mot. at 24. The court agrees with Defendant that Plaintiff failed to properly raise this issue with
the Board during the administrative proceedings. See Def.’s Resp. to Cross-Mot. for Summ. J. &
Reply in Supp. of Mot. for Summ. J., ECF No. 50 [hereinafter Def.’s Reply], at 6–9; see also
Admin. R., ECF No. 44, at 67–78 (Plaintiff’s opposition to motion to dismiss second grievance). 6
Plaintiff therefore has waived contesting that issue in this case. See Wallaesa v. FAA, 824 F.3d
1071, 1078 (D.C. Cir. 2016) (“It is a hard and fast rule of administrative law, rooted in simple
fairness, that issues not raised before an agency are waived and will not be considered by a court
on review,” particularly where, as here, “an appeal follows adversarial administrative proceedings
in which parties are expected to present issues material to their case.”).
B. FSGB’s Decision to Dismiss Plaintiff’s Second Grievance on the Ground of Claim Preclusion
The court now turns to the heart of the matter: Plaintiff’s argument that the Board erred in
dismissing his Second Grievance on the ground of claim preclusion. Plaintiff challenges the
Board’s application of claim preclusion on two primary grounds: (1) the Board had not previously
applied claim preclusion to dismiss a grievance and therefore lacked the authority to do so; and
(2) the Board erred on the merits by applying claim preclusion to bar Plaintiff’s claims in this case.
See Pl.’s Cross-Mot. at 24–38. Neither argument is convincing.
6 Plaintiff also ostensibly abandons this theory by failing to mention it in his reply brief. See generally Pl.’s Reply to Def.’s Opp’n to Cross-Mot. for Summ. J., ECF No. 53. At the very least, Plaintiff says nothing to counter the Department’s opposition, such as by suggesting that he did in fact raise the issue during the administrative proceedings.
9 1. FSGB’s Authority to Apply Claim Preclusion
Plaintiff’s first contention—that the Board lacked the power to apply the common law
doctrine of claim preclusion—is waived because he did not raise it before the FSGB. Compare
Pl.’s Cross-Mot. at 36–38; Pl.’s Reply to Def.’s Opp’n to Cross-Mot. for Summ. J., ECF No. 53
[hereinafter Pl.’s Reply], at 10–11, with Admin. R., ECF No. 44, at 67–78. When the Department
moved to dismiss Plaintiff’s Second Grievance, it asserted two grounds for dismissal. See Admin.
R., ECF No. 44, at 57. First, it argued that Section 1109(a) of the Foreign Service Act, 22 U.S.C.
§ 4139(a), 7 deprived the FSGB of jurisdiction over Plaintiff’s Second Grievance. Id. at 57–62.
Second, and alternatively, the Department maintained that the doctrine of claim preclusion barred
the Second Grievance. Id. at 62–63. Plaintiff challenged the first ground before the FSGB, but he
never disputed the FSGB’s authority to invoke the second. Compare id. at 69 (“[T]he Department
has produced no case in which the Board, citing section 1109(a), has denied jurisdiction over a
grievance based on a finding that it raises issues resolved in a previous grievance.”), with id. at
70–73 (asserting, in response to the Department’s claim preclusion argument, that the Second
Grievance does not rely on the same underlying facts as the First). Instead, to the extent Plaintiff
contested the Department’s reliance on claim preclusion, he argued only that the doctrine did not
apply on the merits. See id. at 70–73. He never took the position he does now, which is that the
FSGB lacks the power to dismiss a grievance on claim preclusion grounds. Therefore, Plaintiff
7 Section 1109(a) provides in pertinent part:
A grievant may not file a grievance with the Board if the grievant has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided under another provision of law, regulation, or Executive order . . . and the matter has been carried to final decision under such provision on its merits or is still under consideration.
22 U.S.C. § 4139(a)(1). The FSGB did not rely on this statute to dismiss Plaintiff’s Second Grievance. Admin. R., ECF No. 44, at 110.
10 cannot pursue that argument here. See Coburn v. McHugh, 679 F.3d 924, 930 (D.C. Cir. 2012)
(“The well-established doctrine of issue waiver . . . permits courts to decline to hear arguments not
raised before the agency where the party had notice of the issue.” (alteration in original) (internal
quotation marks omitted)); see also Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013)
(explaining that the standard for waiver in administrative law cases focuses on whether the plaintiff
raised the “specific argument” before the agency, and “not merely the same general legal issue”);
Pacific Ranger, LLC v. Pritzker, 211 F. Supp. 3d 196, 224 (D.D.C. 2016) (characterizing that
standard as “demanding”).
Even if Plaintiff could raise that argument now, the contention lacks merit. Plaintiff makes
his assertion that the Board did not have the authority to invoke claim preclusion most clearly in
his reply brief. Citing the D.C. Circuit’s decision in North Carolina v. FERC, 112 F.3d 1175 (D.C.
Cir. 1997), he insists that claim preclusion “cannot preclude a party from raising claims under
circumstances defined by the legislature.” Pl.’s Reply at 10 (citing FERC, 112 F.3d at 1185).
Here, Plaintiff suggests that the controlling statute is 22 U.S.C. § 4134(a), which provides that a
Foreign Service Officer may file a grievance within two years from the date the Officer discovers
the matter giving rise to the grievance. Pl.’s Reply at 11. Drawing a parallel to the statute at issue
in North Carolina v. FERC, Plaintiff asserts that “[w]here Congress has not required the Officer
to include in a grievance all possible claims, including those that have not yet ripened into a
dispute, the Board cannot impose such a requirement under the guise of claim preclusion.” Id.
Plaintiff’s reliance on North Carolina v. FERC is misplaced. In that case, the state of North
Carolina sought review of a decision “to amend a FERC license under which a power project was
operated within Lake Gaston on the Roanoke River” by Virginia Power and Electric Company.
112 F.3d at 1180. The amended license would have allowed Virginia Beach to build an intake
11 structure within the project’s boundaries and withdraw water from the Lake as a part of a pipeline
project. Id. Because Lake Gaston is located primarily in North Carolina, North Carolina
intervened in the license amendment proceedings and petitioned the Commission to stay its
proceeding until Virginia Power obtained a water quality certification from North Carolina
pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. § 1341(a)(1). Id. at 1180–82.
After the Commission denied the petition, North Carolina moved for rehearing. Id. at 1182. In
denying the motion, the Commission held, among other things, that North Carolina waived its
Section 401 certification right by failing to assert it during an earlier proceeding involving Virginia
Beach’s application for a dredge-and-fill permit. See id. at 1182–83. North Carolina filed suit
under the APA, arguing in part that FERC violated section 401(a)(1) of the Clean Water Act by
issuing an amended license without receiving a water quality certification from North Carolina.
Id.
After finding that North Carolina did not waive its certification right under the plain
language of Section 401(a)(1), the D.C. Circuit addressed the agency’s alternative grounds for
affirmance, one of which was the common law doctrine of claim preclusion. Id. at 1183–85. The
Circuit rejected the Commission’s invitation to “read th[e] doctrine [of claim preclusion] into
Section 401(a)(1),” which “clearly provide[d] that a Federal license or permit may not be granted
‘until the certification required by [the statute] has been obtained or has been waived’ as a result
of a state’s ‘refus[al] to act on a request’ for such in a timely manner.” Id. at 1185 (third alteration
in original) (emphasis added) (quoting 33 U.S.C. § 1341(a)(1)). The court reasoned that there was
“no room for the doctrine of claim preclusion in such a precisely worded provision,” and to hold
otherwise would require the court “to usurp the legislative function.” Id.
12 In this case, Plaintiff has pointed to no similar “precisely worded” statutory provision.
Instead, the statute cited by Plaintiff, 22 U.S.C. § 4134(a), simply states when a grievance must be
filed, see id. (providing that a grievance “is forever barred . . . unless it is filed with the Department
not later than two years after the occurrence giving rise to the grievance”), and is thus more akin
to a statute of limitations. Unlike in North Carolina v. FERC, there is nothing inherently
inconsistent about the Board applying the doctrine of claim preclusion in the face of a statute that
does no more than set a limitations period within which to file a grievance. The Board therefore
did not act arbitrarily by relying on the doctrine of claim preclusion to dismiss the Second
Grievance. 8
2. FSGB’s Substantive Application of Claim Preclusion
As was the case before the Board, Plaintiff’s primary argument here is that the FSGB
wrongly applied the doctrine of claim preclusion to his case. See Pl.’s Cross-Mot. at 2, 25–27.
For the reasons stated below, the court finds no error with the Board’s decision. 9
Under the doctrine of claim preclusion, “a subsequent lawsuit will be barred if there has
been prior litigation (1) involving the same claims or cause of action, (2) between the same parties
or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court of
8 Plaintiff also seems to advance a different contention as to the impropriety of the Board relying on claim preclusion, but this argument is far from clear. Plaintiff appears to assert that, because the Board had not before used claim preclusion to dismiss a grievance, the Board’s decision to apply that doctrine to him in this case was arbitrary and capricious. See Pl.’s Cross-Mot. at 36–38. Ultimately, however, the court does not address this argument. To the extent that Plaintiff advances it, he does so only in refuting the Department’s contention that he waived contesting the agency’s authority to rely on claim preclusion. He does not, however, explain why the Board’s first-time reliance on claim preclusion was arbitrary and capricious, or cite any authority in support of that proposition. Thus, not having added any flesh to the bone of that argument, the court declines to consider it. Cf. Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (“A litigant does not properly raise an issue by addressing it in a cursory fashion with only bare-bones arguments. Even if the briefing were sufficient to raise this issue, it certainly is not persuasive enough to carry [petitioner’s] burden of showing that the agency’s analysis was arbitrary and capricious.” (citations and internal quotation marks omitted)). 9 The court here affords no deference to the Board’s application of the doctrine of claim preclusion, as “[an] agency's interpretation of judicial precedent is entitled to no deference.” Banner Heart Hosp. v. Burwell, 201 F. Supp. 3d 131, 137 (D.D.C. 2016) (citing New York New York, LLC v. NLRB, 313 F.3d 585, 590 (D.C. Cir. 2002)).
13 competent jurisdiction.” Pl.’s Cross-Mot. at 25 (quoting Havens v. Mabus, 759 F.3d 91, 97–98
(D.C. Cir. 2014)). Here, as in many cases, the challenge is determining whether two cases involve
the “same claim.” See id. at 26; see, e.g., Nat’l Res. Def. Council v. EPA, 513 F.3d 257, 260 (D.C.
Cir. 2008). The answer to this question turns on whether both cases “share the same nucleus of
facts.” Nat’l Res. Def. Council, 513 F.3d at 261.
Plaintiff contends that that this “critical test” is not satisfied here, in part because the claims
raised in his First and Second grievances are “distinct.” Pl.’s Cross-Mot. at 26–27. Specifically,
Plaintiff argues that the “subject of [his] First Grievance . . . was the denial of promotion eligibility
while he was assigned to OSCE, which he alleged was due to the Department’s effectuating the
assignment in 2007 by separation/transfer.” Id. at 28. By contrast, Plaintiff contends, the claim in
his Second Grievance “did not concern the benefits to which he would have been entitled during
a detail to the OSCE” and instead challenged “the Department’s failure to award him the benefits
to which he was entitled after he was re-employed, in light of the Board’s decision rejecting his
challenge to his separation/transfer.” Id. at 28–29. Thus, Plaintiff attempts to distinguish the two
claims based on the purported time when each arose.
Like the Board, the court finds that distinction unconvincing. While Plaintiff emphasizes
that his First Grievance concerned benefits he should have received during his assignment to
OSCE, the benefits that he claims he was entitled to after his assignment in his Second Grievance
also arise out of the same operative set of facts: the assignment itself. Both grievances rise and
fall on the question whether Plaintiff’s 2007 assignment was a “separation and transfer” or a
“detail.” No other facts are relevant. Thus, as the Board properly recognized, both sets of claims
“flow from the separation/transfer action.” Admin. R., ECF No. 44, at 112.
14 Plaintiff offers a host of arguments to avoid the consequence of his splitting of claims, but
none are convincing. First, he asserts that, because “he was entitled to certain comparable but
legally distinct benefits after his return from his separation/transfer to OSCE,” the Second
Grievance differs from the First. See Pl.’s Cross-Mot. at 27. That Plaintiff sought “comparable
but legally distinct benefits” in his Second Grievance, however, does not entitle Plaintiff to “get a
second bite at th[e] same apple.” See Nat’l Res. Def. Council, 513 F.3d at 261. Rather, as Plaintiff
himself recognizes, “a party cannot escape application of the doctrine by raising a different legal
theory or seeking a different remedy in the new action that was available to [him] in the prior
action.” Pl.’s Cross-Mot. at 26 (alteration in original) (quoting Sluss v. Renaud, No. 15-cv-1475,
2016 WL 4487729, at *3 (D.D.C. Aug. 25, 2016)). Accordingly, the fact that Plaintiff sought
“legally distinct” benefits as part of his Second Grievance does not save him.
Next, Plaintiff argues that the Board’s application of claim preclusion was improper
because the claims he raised in the Second Grievance could not have been included in his First
Grievance. Id. at 31. The reason he could not grieve the claims simultaneously, Plaintiff states,
is that the second contention—that he was entitled to benefits even as a separated employee under
Executive Order 11552 and 5 U.S.C. § 3584—could not be asserted until he officially “returned”
to the agency and was “re-employed.” Id. That assertion is difficult to follow. Plaintiff points to
no valid impediment that prevented him from asserting alternative theories to his right to benefits
when he filed his First Grievance. 10 Put differently, Plaintiff could have argued, without
10 Plaintiff does cite the Department’s failure to “take[] the position that it would never comply with the statute and Executive Order” as an impediment to his ability to assert these claims in his First Grievance, see Pl.’s Cross-Mot. at 31–32, but that argument falls flat. As Plaintiff acknowledges, the statute and executive order that he cites would have required the Department to “take[] his OSCE service into account in determining the benefits to which he should have been entitled upon his re-employment” in June 2012, before he filed his First Grievance. See id. at 32. Thus, the Department’s failure to expressly state its position as to the applicability of the statute and executive order posed no hindrance to Plaintiff’s ability to assert entitlement to benefits. See Def.’s Reply at 17.
15 inconsistency, that he was in fact detailed to the OSCE, but even if separated and transferred, he
still was entitled to certain benefits upon his return. The only difference between the First and
Second Grievance is that, before he filed the Second Grievance, the Board determined that he was
on separated status while at the OSCE. But, as the Board explained, its decision resolving
Plaintiff’s status “did not create any new facts,” but simply “‘left undisturbed’ the agency’s
original decision to separate/transfer [Plaintiff] to the OSCE.” Admin. R., ECF No. 44, at 112.
That is, the Board’s decision had no bearing on additional arguments Plaintiff could have made in
his First Grievance concerning the Department’s alleged failure “to award him certain benefits he
felt he should have received upon his re-employment with the agency in June 2012.” Id. at 111.
Plaintiff did not make those arguments, and the Board therefore properly applied the doctrine of
claim preclusion.
Additionally, Plaintiff challenges the Board’s decision as arbitrary and capricious because
“it reveals considerable confusion” over whether its “decision [wa]s predicated upon collateral
estoppel or claim preclusion.” See Pl.’s Cross-Mot. at 32; Pl.’s Reply at 7–8. The court rejects
this argument. True, the Board repeatedly characterized the doctrine it was applying as “Collateral
Estoppel (Claim Preclusion),” see Admin. R., ECF No. 44, at 110–12, even though collateral
estoppel refers to issue preclusion, see generally Bailey v. Fulwood, 793 F.3d 127, 136 n.5 (D.C.
Cir. 2015). But in dismissing Plaintiff’s Second Grievance, the Board unquestionably applied the
elements of claim preclusion. For example, the Board held:
[Plaintiff] was obligated under the doctrine of collateral estoppel (claim preclusion), therefore, to bring all of his claims that relate to the same series of events during the first grievance. [Plaintiff] is precluded from making additional claims in a new grievance, based on those same facts that form the basis of the first grievance, after the Board reached a decision denying that grievance. To permit this would be tantamount to seeking a second Board reconsideration of
16 the first grievance, without [Plaintiff] having met the criteria for reconsideration as set forth in 22 U.S.C. 4136(9) and CFR 910.1.
Id. at 111. Indeed, other than mistakenly characterizing claim preclusion as “collateral estoppel”
instead of “res judicata,” there is no indication whatsoever that the Board confused the two
doctrines. See, e.g., id. at 110–11 (“We are not convinced that the two claims are separate and
distinct . . . .” (emphasis added)); id. at 112 (“[Plaintiff] had the opportunity, and even the
obligation . . . to raise during his argument of his first grievance any and all claims he had
concerning Department violations of any kind that he deemed to flow from the separation/transfer
action. As he failed to raise these claims . . . he is barred from filing a new grievance now, based
on the same underlying facts.” (emphasis added)).
Finally, the court’s conclusion that the Board did not improperly apply the doctrine of claim
preclusion resolves Plaintiff’s contention as to Count IV, which is that the Board failed to consider
the merits of his Second Grievance. See Am. Compl. ¶ 49; Pl.’s Cross-Mot. at 2–3. Because the
Board found the Second Grievance to be barred under the doctrine of claim preclusion, it
appropriately dismissed the Second Grievance without considering its merits. Cf. Nat’l Res. Def.
Council, 513 F.3d at 261. That is how claim preclusion works.
C. FSGB’s Rejection of Plaintiff’s Judicial Estoppel Argument
That leaves Plaintiff’s argument concerning the Board’s rejection of his plea to apply the
equitable principle of judicial estoppel to prevent the Department from seeking dismissal on claim
preclusion grounds. Plaintiff contends that Defendant pulled a bait and switch. He maintains that
when the Department opposed his request for reconsideration of the First Grievance, the
Department argued that the Board should not consider Plaintiff’s claims regarding Executive Order
11552 and 5 U.S.C. § 3584—one of the bases for his Second Grievance—in part because “they
did not concern the claims raised in the First Grievance,” and “in any event . . . were fully
17 addressed in the Second Grievance.” Pl.’s Cross-Mot. at 43 (citing Admin. R. Part 6, ECF No. 38,
at 197). Having taken that position in the First Grievance proceedings, Plaintiff maintains that the
Department was foreclosed—or judicially estopped—from subsequently arguing in the Second
Grievance proceedings that Plaintiff could have brought his claims all at once. See id. at 44. Thus,
in the administrative proceedings below, Plaintiff urged the Board not to invoke claim preclusion
on the ground of judicial estoppel. See id. at 38; see also Admin. R., ECF No. 44, at 73–76.
The Board, however, declined to apply that equitable doctrine. See Admin. R., ECF No.
44, at 112–13. In doing so, the Board relied on the test set out in New Hampshire v. Maine, 532
U.S. 742 (2001), which articulates three factors that courts generally consider when determining
whether to apply judicial estoppel in a particular case:
First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
See Admin. R., ECF No. 44, at 113 & n.4 (quoting Moses v. Howard Univ. Hosp., 567 F. Supp.
2d 62, 66 (D.D.C. 2008)); Moses, 567 F. Supp. at 66 (quoting New Hampshire, 532 U.S. at 750–
51). Applying this test, the Board ultimately found “no evidence that any of these three factors
appl[ied], that the Department abused the legal system by any of the arguments it made in this
case, or that its actions met any other prerequisites that might be used in determining applicability
of this doctrine.” Admin. R., ECF No. 44, at 113. The Board also concluded that the Department’s
“request that the first grievance be remanded if the Board decided to rule on the merits of new
claims that [Plaintiff] made in his [motion to reconsider], on which the agency had not had a chance
18 to be heard, [was] not contrary or inconsistent with its previous position.” Id. Instead, the Board
reasoned that the Department’s position had been “both consistent and persuasive that the
underlying facts are the same in both grievances.” Id.
The court finds no error in the Board’s ruling or its reasoning. Having closely reviewed
all of the parties’ relevant submissions to the Board during both proceedings, the court concludes
that the Department’s position in its opposition to Plaintiff’s request for reconsideration of the First
Grievance was not “clearly inconsistent” with the position it took later in its motion to dismiss the
Second Grievance. As Defendant correctly points out, its opposition simply argued that Plaintiff’s
claims under the Executive Order and relevant statute “had not been asserted during the
proceedings on the merits, and therefore could not justify reconsideration of the Board’s decision.”
Def.’s Reply at 24; cf. Pl.’s Cross-Mot. at 42–43 (noting that, with respect to his argument
regarding Executive Order 11552 and 5 U.S.C. § 3584, the Board held that Plaintiff was
“presenting this as a new argument which, . . . [the Board] will not consider on the merits or as
grounds for reconsideration” (quoting Admin. R. Part 6, ECF No. 38, at 275)). The Department’s
position in its motion to dismiss the Second Grievance is premised on a similar ground: Plaintiff’s
failure to assert these claims when he filed the First Grievance. See Admin. R., ECF No. 44, at
62–63. Moreover, as the Board recognized, there is no inconsistency in the Department’s position
that the Board remand the first grievance to the agency if the Board denied the request for
reconsideration in all other respects, but allowed Plaintiff to pursue the new claims he raised for
the first time in his request for reconsideration. See id. at 113. Parties frequently present
alternative arguments, and there is nothing novel about the Department’s decision to do so here.
19 V. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment, ECF No. 46,
is granted, and Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 49, is denied. A
separate Order accompanies this Memorandum Opinion.
Dated: March 14, 2018 Amit P. Mehta United States District Judge